SUMMIT ON RACIAL DISPARITIES IN THE
JUVENVILE JUSTICE SYSTEM
INDIANA STATE BAR ASSOCIATION
COMMISSION ON DISPROPORTIONALITY IN
YOUTH SERVICES
Morning Keynote Speaker
JOHN C. BRITTAIN
PROFESSOR OF LAW
DAVID A. CLARKE SCHOOL OF LAW
UNIVERSITY OF THE DISTRICT OF COLUMBIA
August 27, 2009
TimeBanks USA
Racial Justice Initiative
Legal and Systems Change Strategy
TimeBanks USA Background
• Founded in 1980 by Edgar Cahn - a “Think and Do Tank” for
reweaving community
• Network to exchange ideas and build social capital
• TBUSA Time Dollar Youth Court, a large-scale diversion
program for arrested youth in Washington, DC - reduces
juvenile recidivism
• Hosted most recent conference, June 2009, “Dismantling
Structural Racism in Juvenile Justice and Child Welfare.”
Launched TUBSA’s Racial Justice Initiative
Overview of TBUSA’s
Racial Justice Initiative
• In 2008 Edgar Cahn secured a planning grant from
the WK Kellogg Foundation and began a major
effort to address structural racism, and recruited
Cynthia Robbins to co-lead the effort
•
TBUSA’s Racial Justice Initiative combines a
targeted legal theory with Time Banking’s core
principles to address disproportionality in juvenile
justice, child welfare and special education
• See also the law review article, An Offer They
Can’t Refuse, a focus on juvenile justice
Background of the
Legal and Systems Change Strategy
• June 30, 2009, University of the District of Columbia (UDC) Law
Review released a pre-publication version of An Offer They
Can’t Refuse: Racial Disparity in Juvenile Justice and
Deliberate Indifference Meet Alternatives That Work, by Edgar
Cahn and Cynthia Robbins
• Intent Doctrine set forth in Washington v Davis (US 1976)
created a significant burden for plaintiffs seeking relief from
government discrimination because it requires them to prove
that the government intended to discriminate.
• Intent Doctrine hindered efforts to dismantle structural racism
and address well documented Disproportionate Minority
Contact and Confinement (DMC) within the Juvenile
Delinquency System.
• “An Offer” presents a new Legal and Systems Change Strategy
Novel Legal Theory Overview
• Basis of new theory is a unique application in the juvenile
justice and Equal Protection context of the “Deliberate
Indifference” standard from City of Canton v. Harris (1989)
• Under City of Canton v Harris, a municipality can be liable
under 42 USC § 1983 only where its policies cause the
Constitutional violation
– Only if a municipality’s practices evidence deliberate
indifference to the rights of its inhabitants can such a
shortcoming be properly thought of as a city policy or
custom actionable under 42 USC § 1983 (in this case, it was
a failure to train its employees)
– Municipal liability under 42 USC § 1983 attaches if, and only
if, city policymakers deliberately choose a practice or policy
from among various alternatives
Text of 42 USC § 1983
• Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District
of Columbia, subjects, or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress, …. For the purposes of
this section, any Act of Congress applicable
exclusively to the District of Columbia shall be
considered to be a statute of the District of
Columbia
Proving Deliberate Indifference
• A failure by policymakers to use knowledge about
effective alternatives to incarceration that reduce
DMC gives rise to liability under 42 USC § 1983
• To prove deliberate indifference for purposes of a
claim under 42 USC § 1983, a plaintiff must
demonstrate:
– Injury to a right protected by the Constitution or
federal law
– That the injury was relatively certain to occur
– That the government’s course of action was one
selected from among various alternatives
A Path to Proving Deliberate
Indifference
•
Once officials receive formal notice of the
racially-disparate injury caused by their
present practice and notice of the availability
of effective alternatives, the government’s
continuation of the status quo constitutes
“deliberate indifference” and proves intent
for 42 USC § 1983 cases.
•
In the juvenile justice context, continuing
to incarcerate youth of color at
disproportionate rates instead of using more
effective, less expensive alternatives
constitutes “deliberate indifference”
A Path to Proving Deliberate
Indifference
• To establish deliberate indifference in the juvenile
justice context, “An Offer They Can’t Refuse”
proposes a Public Hearing process to put officials
on formal notice that:
– Present system results in documented DMC that violates
the Constitution;
– Racial disparity remains even when accounting for all raceneutral factors;
– Injuries flow from this disparity, specifically from the
disproportionately high detention and incarceration rates
for youth of color, but, in fact, at every point in the system
youth of color are subjected to harsher treatment;
– Highly effective, evidence-based, replicable, and less-costly
alternatives would substantially reduce DMC.
Achieving Systems Change
• After receiving notice, if officials opt not to use more effective
and less expensive alternatives to incarceration and continue
the status quo of disproportionate incarceration, then they
would be liable under 42 USC § 1983
• Officials who maintain the status quo will be politically
vulnerable
• Litigation is costly and time consuming; it is a last resort
• We are hopeful that, officials facing the threat of provable
liability will feel compelled to adopt alternatives
• The Racial Justice Initiative strategy will give officials the
“political cover” to establish community-based alternatives to
incarceration for youth; the Initiative will insulate officials
against “tough-on-crime” opponents
Next Steps
Comments
• Please send an e-mail with any support statement or
indicating a willingness to be called to develop a
brief statement
to comments@racialjusticeinitiative.org
• We also invite comments on the law review article,
“An Offer They Can’t Refuse” until August 31, 2009
via comments@racialjusticeinitiative.org
Actions
• Would you or your organization be interested in
helping to organize a public hearing to address
disproportionality? Do you know legislators, judges
and/or administrators who might be willing to
convene a hearing to put officials on notice?